New filings in the ATI/UVa FOIA case

The ATI/UVa case grinds on. The latest filings are (finally) substantive on the main point at issue - what is and what is not exempt under Virginia's FOIA, though you wouldn't know that from reading the ATI press release. Nor would you gather that the main reason for why this is all taking so long is because of ATI's cowboy lawyering and the filing of irrelevant (and dismissed) motions that sought to do various end runs around the main issue (such as demanding the documents in question under discovery, then seeking to withdraw the motion, then filing another discovery request etc.). The litany of misrepresentation and time-wasting tactics is outlined clearly in the UVa response (part I, part II) (pages 2-7). More interesting are the actual arguments in UVa's response regarding exemptions to the FOIA release, of which there are 123 in the Virginia statute. It turns out that 18 states allow relatively broad exemptions similar to the Va law, which states that the following need not be released:

Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education,... in the conduct of or as a result of study or research on ... scientific .. or scholarly issues,... where such data, records or information has not been publicly released, published, copyrighted or patented.

The other states with similar clauses include Colorado, Delaware, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland, Michigan, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, South Carolina, Utah and Vermont. (Notably Texas is not included). However, despite the ubiquity of this research exemption in legislation, there is very little case law to use as precedent. As we have discussed before, US federal FOIA has copious precedent to guide interpretations of exemptions, but the application of federal precedent to state cases is problematic. The UVa argument looks at case law in Ohio and Indiana, the drafting history of the Va exemption to support the argument that the 'exemplar' emails are exempt. Note that the specifics of the case are being decided on the merits of 14 example emails that were declared exempt initially by UVa, but that exist in the 'quasi-public domain' because of the UEA email hack. (This agreement was the negotiated position after the initial procedural order was vacated). Oral arguments are due in September.

ATI & UVa: An intervention

As discussed here and here, a key oddity in the ATI vs. UVa VFOIA case is that UVa voluntarily consented to have ATI review all material in the scope of the request in order to challenge any redactions or exemptions that UVa deemed necessary.

Now, Michael Mann has filed a motion directly with the Virginia court to have this state of affairs reviewed citing privacy concerns and the clear lack of ability to safeguard legitimate interests should the process go according to the current plans.

In return, ATI has thrown up another whole suite of red-herrings and strawman arguments that have nothing to do with the point of law at hand. They are arguing that Mann has no standing to intervene (which would seem to be obviously ridiculous given that it is his email account that is being mined), and that the Mann challenge is a focused on the legitimacy of the VFOIA request in the first place. This last argument is transparently false, since UVa has already sent over the material requested that did not come under any valid exemptions with no objection having been raised. Mann's intervention is solely focused on the procedure for dealing with material that UVa thinks is exempt, but that ATI thinks the exemption is invalid. The ATI release does not actually mention the point in question at all.

Even more interestingly, Chris Horner is quoted as saying that Mann is merely "sputtering ad hominem and conspiracy theories". This is the same Chris Horner who called Jim Hansen a 'fanatic' and wondered "Why is NASA hiding James Hansen's ethics records?" (see here for a more reality-based view). No ad hominem or conspiracy theorizing there of course.

ATI additionally claims that "Dr. Mann wants, after the fact, for UVA to throw out policies he accepted as a condition of living off of taxpayer dollars, in order to cover up public information and to evade scrutiny." - a statement wholly at odds with the facts in this case, and indeed with the VFOIA legislation itself. Why are there any mandated exemptions to total public disclosure if that any recourse to them is "a cover up" to "evade scrutiny"?

Indeed, since the point of Mann's complaint is that the ATI lawyers cannot be trusted to deal professionally with any material under seal, one would think that they would make more of an effort to appear trustworthy. One would be wrong.

ATI & UVa: Reviewing exempted material again

As highlighted here a few weeks ago, the agreement between UVa lawyers and Chris Horner and David Schnare of ATI has raised more than a few eyebrows. The point at issue is how to deal with material that UVa thinks is exempt from release under Virginia FOIA, but that ATI thinks is not.

In federal FOIA, standard practice is to produce a Vaughn Index of all the material, and to have a judge, in camera, decide on whether any challenge to an exemption is valid or not. Under the UVa Consent decree, UVa has agreed to send ATI lawyers all material (under seal) for their review. Some obvious issues with this approach were discussed in the last post.

In a new letter to UVa, the Union of Concerned Scientists has questioned the sense of this and provided Virginia case law in support of a more federal-FOIA-like approach. Specifically, they cite Bland v Virginia State University (2006) where the Virginia Court of Appeal "encouraged the filing of allegedly confidential records for in camera inspection by the trial court and, if necessary, by an appellate court" in VFOIA cases where exemptions were an issue. As with federal FOIA, this seems to make much more sense.

In response, ATI put out a press release expressing surprise that anyone would question their professionalism.

What's good for the goose...

Issues: Appeals against claimed exemptions, Vaughn Index

Washington Post: Intimidation by FOIA

In an editorial this week 'Harassing climate-change researchers', the Washington Post made a similar point to that seen in the UK Guardian last week.

FREEDOM OF information laws are critical tools that allow Americans to see what their leaders do on their behalf. But some global warming skeptics in Virginia are showing that even the best tools can be misused.

Lawyers from the Environmental Law Center at the American Tradition Institute (ATI) have asked the University of Virginia to turn over thousands of e-mails and other documents written by Michael E. Mann, a former U-Va. professor and a prominent climate scientist. Another warming skeptic, Virginia Attorney General Ken Cuccinelli II (R), recently demanded many of the same documents to determine whether Mr. Mann somehow defrauded taxpayers when he obtained research grants to study global temperatures.

A judge quashed Mr. Cuccinelli’s chilling “civil investigative demand.” But even though Mr. Mann wasn’t an agent of the commonwealth in any practical sense when he worked at U-Va., the university hasn’t been able to dismiss ATI’s requests, since Mr. Mann’s e-mails are public records in a technical sense. U-Va. agreed last week that it will hand over all the material that state law obliges it to release by Aug. 22.

ATI’s motives are clear enough. The group’s Web site boasts about its challenges to environmental regulations across the country. Christopher Horner, its director of litigation, wrote a book called “Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud and Deception to Keep You Misinformed.” (We wonder whether the “alarmists” who wrote the National Research Council’s latest report on climate change are threatening, fraudulent or merely deceptive.) And ATI declares that Mr. Mann’s U-Va. e-mails contain material similar to that which inspired the trumped-up “Climategate” scandal, in which warming skeptics misrepresented lines from e-mails stored at a British climate science center.

Going after Mr. Mann only discourages the sort of scientific inquiry that, over time, sorts out fact from speculation, good science from bad. Academics must feel comfortable sharing research, disagreeing with colleagues and proposing conclusions — not all of which will be correct — without fear that those who dislike their findings will conduct invasive fishing expeditions in search of a pretext to discredit them. That give-and-take should be unhindered by how popular a professor’s ideas are or whose ideological convictions might be hurt.

Teresa A. Sullivan, U-Va.’s president, said that the university will use “all available exemptions” from the state’s public records law to shield Mr. Mann. And a university spokesperson said that U-Va. anticipates that most of the documents at issue will be exempt under a statute that “excludes from disclosure unpublished proprietary information produced or collected by faculty in the conduct of, or as a result of, study or research on scientific or scholarly issues.” The university is right to make full use of such exemptions.

An important point to note is that the editorial is not criticizing FOIA legislation in general (which would be a perverse point of view for a newspaper). Rather they are commenting on use of that legislation as a means to harass academics with a 'shoot the messenger' tactic. A similar analogy would be the if an administration used the IRS to audit the tax returns only of people in the opposing party. It is not that auditing tax returns is bad legislation, but when it is turned into a political weapon, there is a chilling effect on the political process itself. If mounting numbers of FOIA 'attack' requests discourage academics from researching or talking about certain topics, the whole research endeavor will suffer, as will the idea of informed public discourse.

Academic Freedom and FOIA

In the Cronon/U. Wisonsin case, the university made an argument that exemptions to the Wisconsin Open Records Act effectively protect academic freedom, defined by them as the right of academics to "to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas".

There is no explicit definition of academic freedom or exemption in either Wisconsin or Federal FOIA, and so the claim that academic freedom is protected rests on an interpretation of the statute.

In the UVa case, a letter from 15 organisations, including the AAUP, have urged UVa to apply the same interpretation to the Virginia statute.

The basis for an effective 'academic freedom' exemption, is given by the U. Wisconsin counsel:

5) Intellectual communications among scholars. Faculty members like Professor Cronon often use e-mail to develop and share their thoughts with one another. The confidentiality of such discussions is vital to scholarship and to the mission of this university. Faculty members must be afforded privacy in these exchanges in order to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas. The consequence for our state of making such communications public will be the loss of the most talented and creative faculty who will choose to leave for universities that can guarantee them the privacy and confidentiality that is necessary in academia. For these reasons, we have concluded that the public interest in intellectual communications among scholars as reflected in Professor Cronon’s e-mails is outweighed by other public interests favoring protection of such communications.

This references a balance between differing public interests, and like many 'balance' arguments, is potentially open to judicial review.

Unsurprisingly, ATI feels strongly that the balance should be in favor of disclosure, and may well sue to get a review of the eventual UVa redactions (as CEI has done in the NASA case).

In Virginia law, the relevant passage for similar exclusions would be:

Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.

Update: UVa has responded to the letter with a declaration that UVa will use "all available exemptions" consistent with following the letter of the law.

Issues: academic freedom

ATI FOIA requests at UVa

ATI and Del. Bob Marshall have also put in FOIA requests under Virginia law for all of the emails requested by Ken Cuccinelli as part of his FATA inquiry. Note that the response to a CID under FATA (currently under consideration by the Virginia Supreme Court) has nothing to with what is releasable under FOIA.

ATI FOIA Request to UVa from Mann emails

Marshall had a previous request for Mann's emails turned down since the records did not exist at Virginia. If a backup server that might have responsive records has subsequently been found (as claimed in the ATI request), then anything responsive still needs to be filtered for privacy, communications not related to an official position, academic freedom concerns etc.

Virginia FOI laws can be found here.